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FINDINGS OF FACT AND DECISION
Case Number: 159866
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: February 29, 2016
April 18, 2016
November 30, 2016
February 28, 2017
May 1, 2017
June 5, 2017
July 10, 2017
Actual Record Closed Date: August 15, 2017
Hearing Officer: Leah Botwinik Almeleh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 29, 2016
Attorney (Via Telephone) — Student
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 18, 2016
Attorney — Student
Attorney — Student
Attorney — DOE
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30, 2016
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUAR 28, 2017
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 1, 2017
Attorney — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 5, 2017
Attorney — Student
Parents
(Via Telephone) — Student
Student
(Via Telephone) — Student
Interpreter — Student
Attorney — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 10, 2017
Attorney — Student
Attorney — DOE
Procedural Context — DOE
By letter dated February 24, 2016 I was appointed to hear the Matter of pursuant to the IDEA, 20 US Code Section 1415 (f)(l). In furtherance thereof, a pendency hearing was held on February 29, 2016. In furtherance thereof, a pendency hearing was held on February 29, 2016 and an Interim Order of Pendency issued that day.
Exh. ii. On April 18, 2016, the matter was continued. On May 31, 2016 and June 8, 2016 an Amended Due Process Request was submitted and a pre-hearing conference was held on October 11, 2016 for the purpose of developing a scheduling calendar and, where possible, narrowing the issues. Hearings were subsequently held on November 30, 2016; February 28, 2017; May 1, 2017; June 5, 2017 and July 10, 2017. At this time, the proceedings were closed and the decision date duly extended so that a Findings of Fact could be prepared. It should be noted that subsequent to my appointment, the parties jointly moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and preparation of closing memoranda. On August 19, 2016 the record was closed.
Specifically, the Parent is seeking compensatory education services as a result of the Department’s failure to provide FAPE during the 2014-2015, 2015-2016 and 2016- 2017 school years. During these years, the Parent asserts that the Department of Education, through its CSE and Central Based Support Team (hereinafter “CBST”), acknowledged that it did not provide with an appropriate education placement. As such, the Parent contends that the Department stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3]. As a result thereof, she is seeking compensatory education in the form of tuition payment for the (hereinafter
“ ”).
At the commencement of the Parent’s Due Process the student was a student at the . On June 23, 2017, the student aged out of school-age services at . Thereafter, enrolled at where he began receiving a program at pursuant to an Interim Order issued by the undersigned. Exh.i.
As the hearing unfolded, testimony offered by each witness was credible and I have concluded that the witnesses testified truthfully in accordance with their recollections and as to the opinions they held. Finally, a list of persons in attendance and of evidence is appended hereto.
Statement of Material Facts
The Parent submitted the following Statement of Material Facts. Although the Department did not assert any specific objection to the substantive facts alleged in the Parent’s submission, nor did it join in adopting these findings. Having reviewed the Parent’s Statement, I find that there is nothing objectionable in its content and that, in fact, the Statement amply references the record. Given the lack of testimony submitted by the Department, much of the Parent’s Statement of Facts is undisputed.
PARENT’S PROPOSED FINDINGS AND STATEMENT OF MATERIAL FACTS
AND
STATEMENT OF MATERIAL FACTS
1. On February 18, 2016, the Parent, (“ ”) (the “Parent”) filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE”) on behalf of herself and her son, (“ ”), regarding the 2014-2015 and 2015-2016 school years (“SY[s]”) (collectively, the “SYs at Issue”). Exhibit (“Ex.”)
A.
2. On March 27, 2016, the Parent filed an amended DPC. Ex. PP.
3. The DOE conceded that it failed to provide a FAPE for the SYs at Issue. Tr. 119120.
4. The DOE did not (a) raise any defenses at the hearing; (b) call any witnesses; (c) introduce any evidence; or (d) propose any compensatory services. See record, generally.
5. At the hearing, the Parent submitted exhibits marked as A-UU.
6. The Parent called two witnesses and testified on her own behalf with an interpreter. Tr. 230-268.
7. First, she called Dr. (“Dr. ”), , the agency that has been providing provide with (“ ”) as of Case No. 159866
May 2014. Tr. 149-229. Dr. was deemed an expert in without objection by the
DOE. Tr. 154.
8. Dr. is a New York State licensed ,
(“ ”), and New York State licensed , who oversees the program, a company that provides support services to children and families in both the home and school setting. Tr. 150-153.
9. Dr. has a bachelor’s degree in , a master’s degree from in , a doctorate degree in , and an . Tr. 150-151. She is also a (“ ”). Tr. 151. Dr. previously worked as a director, lead teacher and of an program. Tr. 153-154.
10. The Parent also called (“ ”), of
(“ ”), to testify in support of the proposed relief. Tr. 267-288.
11. has a bachelor’s in from , a master’s degree in from , and an from . Tr. 268. also holds NYS teaching certifications for students with disabilities, and is a as well as a . Tr. 268.
12. Prior to working at , had experience as a teacher, manager, and provider, and spent four years working at the . Tr. 179.
13. During the SYs at Issue, was a student with a disability under the IDEA and Section 504. Exs. A, O, P, PP.
14. is . Exs. A, O, P, PP.
15. has been diagnosed with an (Exs. A, O, P, KK, PP) (Exs. DD, EE, KK).
16. During the SYs at Issue, was registered at the in in a classroom and was recommended for related services of . In addition, he received . Exs. A, B, O, P, PP.
17. As will be discussed in further detail below, also uses
. Tr. 158-159.
18. The Parent filed another hearing concerning the 2013-2014 school year, which was resolved by a stipulation (the “Stipulation”). Exs. B, C-1; Tr. 4.
19. In the Stipulation, the parties agreed that ’s stay-put placement arose out of a decision of a prior hearing officer. Ex. B, C-2-3; Tr. 4. This decision is in evidence as
Exhibit B.
20. ’s stay-put placement during this hearing consisted of the following:
a. Placement at an appropriate private school for that offers services;
b. ;
c. ;
d. ;
e. ;
f. ;
g. ; and
h. A school year.
See Statement of Agreement and Order on Pendency dated 02/29/2016.
21. The Parent’s allegations regarding IDEA violations concerning the 2014-2015 and 2015-2016 school years were unrebutted.
22. The Parent alleged that the DOE did not offer an IEP for the 2014-2015 SY. Ex. PP ¶¶
38-42.
23. The DOE did not introduce any IEP into evidence for the 2014-2015 SY. See record, generally.
24. The DOE held an IEP meeting on April 29, 2015. Ex. O.
25. The 2015 IEP recommended all of the same services that constituted ’s stay-put placement, except for ’s , including the following:
a. A classroom placement in an NPS day school;
b. ;
c. ;
d. ;
e. ;
f. ;
g. ; and
h. school year services.
See Ex. O.
26. The 2015 IEP notes that the Parent expressed concerns about the program and placement. Ex. O-2.
27. After the 2015 IEP was created, the Parent’s counsel was advised that the DOE had been unable to make any changes to ’s program at the April 2015 IEP meeting as it was an “annual review”; the DOE told the Parent to submit a request for a reevaluation in order to facilitate a program/placement change. Ex. NN.
28. The Parent submitted a request for a new program on August 13, 2015. Exs. U-6, X,
NN -4, PP ¶¶ 53-59.
29. Subsequently, the DOE conducted a evaluation on December 17, 2015 (Ex. R) and a evaluation on December 16, 2015 (Ex. Q).
30. The Parent alleged that she disagreed with these evaluations. Ex. PP ¶¶ 53-59.
31. The DOE held another IEP meeting on January 27, 2016. Ex. P.
32. The January 2016 IEP recommended essentially the same services as the 2015 IEP.
See Ex. P.
33. Following the creation of the January 2016 IEP, in February 2016 the DOE re-deferred ’s IEP to the CBST. Ex. W.
34. As of June 23, 2017, aged out of . Tr. 200, 260-261.
35. At an April 2017 IEP meeting, the team discussed the fact that was aging out of on June 23, 2017. Tr. 199-200.
36. The DOE has not offered another placement or program. Tr. 200, 215, 263.37. On June 12, 2017, the IHO ordered the DOE to fund ’s program at the . See Interim Order dated June 12, 2017.38. But for the IHO’s interim order, as of July 1, 2017, would be out of school. See Interim Order dated June 12, 2017. 39. lives at . Exs. A, O, P, PP.
. Exs. A, PP; Tr. 229-233. 40.
. Tr. 230-231. 41.
. Tr. 231-232. 42. receives services through , and also has paid for by the Parent. Tr. 231-
232. 43. The Parent also . Tr. 231-
232. 44. ;
. Tr. 167-168. 45. Further, had the IHO not ordered the DOE to place in after he aged out of , the Parent would have lost her job and been unable to afford her living expenses. Tr. 263-264.
46. Dr. testified that she met and started working with in May 2014, providing him with as well as . Tr. 155-156.
47. As of May 2014, was providing pursuant to ’s pendency rights. Tr. 156.
48. was providing additional hours of and services through the Stipulation. Tr. 156-160; Ex. C.
49. Dr. testified that all of the working with from are certified , and in the process of completing their s. Tr.
178. Further, she stated that one of the is bilingual in and English. Tr. 179.
50. Dr. charges /hour for and . Tr. 179. Overview of ’s Strengths and Weaknesses
51. With regard to ’s , Dr. testified that
. Tr. 169-170.
52. However, . Tr. 175176.
53. The Parent testified that
. Tr. 262. She also testified that
. Tr. 262. 54.
. Tr. 170.
55. Dr. testified that was an area of relative strength for , as
. Tr. 170-171.
56. . Ex. R; Tr. 252.
57. Dr. testified that, ,
. Tr. 171-172.
58. Dr. noted that presents with , which have been reduced through the that has been implementing; however, he still . Tr. 172-173.
59. Further, while , have been reduced. Tr. 173.
60. Regarding ’s , Dr. stated that
, however he does require
. Tr. 173-174.
61. The note that requires . Ex. FF.
62. The Parent testified that, regarding ’s , he is able to
, although
. Tr. 246.
63. The Parent stated that
. Tr. 246-247.
64. In addition, the Parent testified that
. Tr. 243-244.
65. The Parent testified that
. Tr. 251.
66. With respect to , is able to but cannot
. Tr. 247-248. He also needs help with . Tr.
X.
67.
. Tr. 249-250.
68. In addition, starting in June 2017, the Parent has started to
. Tr. 249-250.
. Id.
69. On June 4, 2015 counsel for the Parent advised counsel for the DOE that was no longer an appropriate placement for Ex. QQ.
70. Moreover, in July and August of 2015, counsel for the Parent advised the CSE that ’s placement was not appropriate and requested a new program. Ex. NN.
71. Dr. also informed the CSE that was not meeting ’s needs.
72. As part of her work to provided services to , Dr. visited . Tr. 187.
73. In addition, Dr. ’s providers also visited to observe and documented the results of the visit. Ex. G, Tr. 188.
74. Dr. also wrote reports for CSE in October 2014, March 2015 and January 2016.
Exs. D, E, H, I.
75. Based on Dr. ’s experience, visits and review of reports, she opined that was not providing appropriate instruction to and not meeting his needs. Tr. 191-194.
76. Among other things: many of ’s that were being successfully reduced in the home were being presented at school, and the school was not able to properly or effectively implement the procedures to address that Dr. provided to the school. Tr. 191-192. This significantly interfered with ’s ability to learn, as ; further, Dr. testified that , they were not able to provide the appropriate to teach him effectively. Tr. 192-193.
Moreover, Dr. stated that the goals that were created for by the school were not always appropriate and would hold over for many years, and that the school’s data collection methods were flawed, rendering reports about his progress questionable. Tr.
194.
77. Moreover, Dr. stated that there was “frequent turnover” of staff at and that they were often poorly trained. Tr. 194-195.
78. Dr. testified that she spoke to (“ ”), the at , regarding continued concerns about ’s lack of progress at school, as well as protocols and procedures that are effective with him. Tr. 190. apologized and admitted to Dr.
that the staff in ’s classroom did not have the skills to effectively teach him. Tr.
190.
79. In addition. emailed Dr. on January 5, 2015 and stated that she was in agreement with Dr. ’s concerns regarding the fact that was not receiving adequate educational services at . Ex. MM.
80. The Parent alleged that
. Ex. PP ¶¶ 4, 5, 56.
81. Dr. stated that she has had multiple conversations with the Parent regarding . Tr. 215, 218. She also testified that, to her knowledge,
. Tr. 215-217.
82. Dr. noted that she never received a clear explanation from the school regarding , and opined that,
. Tr. 217-218.
83. documented and the Parents’ concerns. Exs. DD, EE, GG, HH, II; Tr. 235.
84. are in the record as
Exhibit RR.
85. On June 4, 2015 counsel for the Parent advised counsel for the DOE that and that it was no longer an appropriate placement for him. Ex. QQ.
86. On September 28, 2016, Dr. also wrote an e-mail to the school seeking an explanation for . Ex. SS.
87. The Parent alleged that the DOE cannot offer on an IEP. Ex. PP ¶¶ 13, 24(a), 24(b), 24(o), 35, 36, 37, 42(g), 45, 46, 49, 62, 65(a), 65(i),
68, 69, 74(a), 74(i), 79(j), 83.
88. Dr. testified that she attended IEP meetings for the 2015-2016 and 2016-2017 school years, including the IEP meeting held in April 2017. Tr. 197-198, 201-202.
89. Dr. testified that she presented her concerns with ’s placement at , as well as reports indicating that he required , at the IEP meeting for the 2015-2016 school year. Tr. 202.
90. Dr. was told by the District administrator that she did not think her supervisor would allow on the IEP, despite the fact that she admitted at the meeting that she thought needed . Tr. 202.
91. Dr. testified that, at all of the IEP meetings she attended, she was told that they could not put or on his IEPs. Tr. 206-207.
92. was diagnosed with in 2013 and
. Tr. 241-244.
93. The Parent presented . Exs. DD, KK.
94. The documents of the DOE (Ex. R-1 [2015 evaluation]; Q-2 [2015
Evaluation]) and (Ex. FF) contain references to , indicating that the DOE was aware of .
95. was also aware of . Ex. FF ( ).
96.
. Tr. 244.
97. The Parent testified that
. Tr. 244.
. Id.
98. The DOE has not offered a and there is no adult on ’s bus that is trained to and/or authorized to . Tr. 244-245.
Further, the Parent did not know whether there was any for ’s bus but indicated that the DOE should make arrangements for a plan. Id.
99. Despite notifying the DOE of and requesting a , the DOE never provided any . Tr. 245-
246.
100. Further, the DOE never evaluated to determine whether he requires a
. Tr. 246.
101. The Parent is requesting that the DOE provide and . Ex. A, KK, PP.
102. The Parent alleged that the DOE did not provide appropriate Translation or
Interpretation services to her for the two SYs at Issue. Ex. PP ¶¶ 3, 24(m), 42(b), 54, 64,
70, 79(i), 88.
103. The Parent alleged that the DOE failed to provide notices and educational records translated into . Exs. A, B.
104. The DPC also alleged that the DOE did not provide adequate interpretation services.
Exs. A, PP.
105. The Parent testified with an interpreter. Tr. 230.
106. The Parent testified that her first language is , and that she also speaks
. Tr. 233.
107.
. Tr. 233-234.
108.
. Tr. 234-235.
109. The Parent testified that can understand . Tr.
234.
110. The Parent testified that she attended an IEP meeting for in April 2017. Tr. 236.
However, there was no interpreter provided to her. Tr. 236-237
111. At a previous IEP meeting, the DOE provided translation over the phone but it was unclear and often undiscernible. Tr. 236-237.
112. The Parent testified that she was not provided any documents translated into at any time over the past three years. Tr. 237-238.
113. Dr. testified that the Parent’s primary language is and , and that she is minimally able to communicate in English. Tr. 182.
114. According to Dr. , the Parent has significant difficulty understanding what the school is doing, how the system works and what is doing with Tr. 185.
115. To Dr. ’s knowledge, the Parent has never been provided with an interpreter to help her communicate with the DOE or the school. Tr. 182-183.
116. The Parent leaves all documents that she receives from the DOE for to review. Tr. 184.
117. According to Dr. , plays a “significant role” in assisting the Parent with interpretation, providing weekly translation regarding all of the aspects of ’s education, without being compensated for translation services. Tr. 184-185.
118. Dr. stated that, if payment were awarded, would charge per hour for these translation services. Tr. 185.
119. Dr. testified that translation services for the Parent need to be provided someone with , in order for him or her to be able to translate the , which involve complex and unique language. Tr. 185-186.
120. The DOE did not introduce any evidence that it provided translated documents to the
Parent.
121. The DOE did not establish that it provided translation or interpretation services to the Parent.
122. The Parent alleged that the DOE did not provide her with for the two SYs at Issue. Ex. PP ¶¶ 24(d), 42(i), 79(c).
123. Dr. testified that, to her knowledge, the Parent has never received any or in the Parent’s native language from the DOE or
. Tr. 186.
124. turned over records of that were given during the day, when the Parent was at work. Ex. JJ. They appeared to be poorly attended and given in
English. Id.
125. The DOE did not establish that it provided training to the Parent.
126. The Parent alleged that the DOE has not taken measures to address . Ex.
PP ¶ 4, 6, 9, 24(t), 79(m).
127. . Tr. 167.
128. The note that
. Ex. FF ( ).
129. The Parent testified that . Tr. 260.
. Tr. 261.
130.
. Tr. 261-262.
131. Dr. also testified that . Tr. 197, 220-
221.
132. . Tr. 221.
133.
. Tr. 221-222.
134. Dr. stated that
. Tr. 221-222.
135. Dr. recommended that receive compensatory , as he did not receive appropriate education in the three years he attended , including the 2016- 2017 school year he spent there based on a pendency order. Ex. M; Tr. 207-208. She testified that lost all of the years of instruction while he attended . Id.
136. This hearing did not include a FAPE claim for the 2016-2017 school year; that issue has been raised in a new matter pending before the IHO. Ex. PP; Tr. 72-73, 78. This new hearing has been designated as Case No. 166370.
137. Specifically, Dr. recommended compensatory education of for each year that he was denied a FAPE. Tr.
208.
138. Based on a school year, for each year that was denied a FAPE, Dr.
was recommending that receive a minimum of up to a .
139. For the two years in question, Dr. recommends a bank of at least
.
140. The Parent alleged that the DOE did not provide with (“ ”) or an evaluation for the two SYs at Issue. Ex. PP ¶¶ 13, 41, 42(c), 65(c),
74(c), 75, 76, 77, 79(k).
141. According to the proposed IEPs and DOE evaluations, the DOE is aware that , although no was recommended. See, e.g., Ex. O-1 (2015 IEP) (noting that ); P-2 (2016
IEP) (noting that “ ”); Ex. R (noting that ). See
also, Ex. FF ( ) ( has “ ”)
142. Dr. testified that, to her knowledge, the DOE did not conduct any evaluation.
Tr. 178.
143. Dr. testified that the DOE never offered to Tr. 178.
144. The Parent testified that was not evaluated by the DOE with regard to , and the Parent did not receive . Tr. 257.
145.
. Tr. 160, 255. According to Dr. , is
. Tr. 160.
146.
. Tr. 257-259.
147. According to Dr. ,
. Tr. 177. As a result, Dr. testified that
. Tr. 178.
148. Dr. testified that
. Tr. 176-177. She stated that
. Tr. 177.
149. The Parent testified that she was advised by that he should have
. Tr. 254-255.
150.
. Tr. 254-256.
151. She testified that,
, but was told by his teacher that
.
Tr. 256.
152. The Parent paid . Ex. TT, Tr. 256.
153. The Parent purchased . Tr. 256.
154. The Parent has not been reimbursed by the DOE for either or .
Tr. 256.
155. The Parent had previously advised the DOE that . Ex. R-1 (2015 evaluation). The Parent reiterated at the hearing that . Tr. 240-
241.
156. Dr. recommended that receive
. Ex. M; Tr. 203-204.
157. In 2014, Dr. wrote a letter supporting ’s need for . Ex. F.
158. provided with services, with a trained in and focusing on and . Tr. 158-159.
159. Dr. testified that is a that focuses on
; she stated that
(or ) is
. Tr. 159-160.
160. received through . Tr. 160.
161. These services were only provided for one year under the Stipulation. Ex. B, Tr. 158-
159. The Stipulation expired in February 2016. Tr. 159.
162. Dr. testified that should continue to receive outside of the home. Ex. M; Tr. 203-204.
163. The Parent alleged that the DOE failed to ensure that received all of his schoolbased mandated related services. Ex. PP, ¶86.
164. The Parent alleged that the DOE failed to implemented ’s stay-put services. Ex. PP, ¶87.
165. During the time the hearing was pending, the DOE was obligated to provide to as follows: (a) ; (b) ; and (c)
. See Ex. B; and Statement of Agreement and Order on Pendency dated 02/29/2016.
166. The DOE did not establish that it delivered ’s stay-put related services for any of the years in question.
167. The DOE did not introduce any attendance records or progress reports relative to ’s in-school related services.
168. Dr. testified that although she had communication with throughout the years, she had minimal contract with his related service providers. Tr. 197-198.
169. She further testified that, at the 2017 IEP meeting, was not receiving his stay-put services, as the at had left the school and had not been replaced. Tr. 197-199. 170. Further, Dr. testified that, during the 2015-2016 school year, the provider at told her that ; as a result, she sought advice from Dr. ’s team. Tr. 196-197.
171. Dr. testified that she has assisted the Parent in looking for other programs for to attend by touring schools with her, filling out applications, and conversing with the schools over the phone. Tr. 209.
172. Dr. testified that she found the (“ ”) to be an appropriate setting for , as, based upon her observations and discussions with , it has trained teachers, multiple , and a . Tr. 212-
214. As a result, she opined that could “provide exactly the support that [ ]
requires.” Tr. 215.
173. Dr. testified that would continue to need a , even if he received during the day. Ex. M; Tr. 207-208.
174. Dr. testified that she had no relationship with and no financial interest in any order directing the DOE to fund ’s school-day program at . Tr. 209-211.
175. testified that is an organization that provides . Tr. 269. stated that the educational philosophy at revolves around . Tr. 269.
176. Each child at who receives has a
. Tr. 270. The related services at are all provided with a . Tr. 270.
177. There are currently students at receiving during the day. Tr.
270.
178. provides students with
. Tr. 270.
179. According to , between and students at are served on an basis. Tr. 270.
180. testified that all children who receive services during the day have , who is responsible for conducting their assessments when they begin services, and developing their goals and programs. Tr. 271. These also monitor progress, observe and train staff for students with , , and provide direct care to every child on their case load. Tr. 271.
181. All of the have their master’s degrees
or are nearing completion of their master’s degree, and many are working towards their . Tr. 271-272. In addition, all of the at are licensed in their respective fields. Tr. 271.
182. testified that she was familiar with as a student who has applied for admission to . Tr. 275-276. She also stated that she had an interview with and reviewed his previous IEPs and progress reports, and determined that would be an appropriate placement for Tr. 278.
183. testified that would be able to fulfill the mandates for in the Order on Pendency dated February 29, 2016. Tr. 286-287.
184. has a on the school premises, and that the school supports students who , and would be able to provide with if necessary if
. Tr. 287.
185. coordinates transportation to and from the school with the Office of Pupil
(“OPT”), with payment from the DOE. Tr. 287-288.
186. testified that, if interpretation services needed to be in place, they would have to be ordered separately as does not have any -speaking interpreters on site.
Tr. 288.
187. According to , has a placement open for as of July 1, 2017, and is willing to accept , assuming funding is available. Tr. 276.
188. charges the following rates:
a. ;
b. ;
c. ;
d. ;
e. ;
See Ex. UU; Tr. 280-281.
189. stated that runs per year; the program also has some students who follow the DOE calendar pursuant to their impartial hearing orders. Tr. 282.
190. testified that approximately at are funded by the DOE at the above rates. Tr. 282.
191. testified that requires funding through an impartial hearing order to be in place before can attend the program. Tr. 285.
The Department of Education’s Position
The Department concedes that it failed to provide with FAPE during the 2014-2015, 2015-2016 and 2016-2017 school years. Tr. at 119-120. No oral testimony was obtained, nor did the Department submit any evidence. No affirmative defenses have been interposed.
The Parent’s Position
The Parent asserts that the Department stands in abrogation of its duty to provide with a free and appropriate public education for the 2014-2015, 2015-2016 and 2016- 2017 school years in violation of the IDEIA (See 20 U.S.C. § 1412 (a)(1)(1997). As a corollary, the Parent further maintains that the related services offered by constitute appropriate compensatory educational remediation.
Consistent with this position, the Parent asserts that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement.
Discussion
Are the Compensatory Education Services Requested by the Parent Appropriate?
Given the Department’s acknowledgement that it failed to provide with an appropriate education for the several school years in question, the only issue outstanding is whether the services sought by the Parent are appropriate.
Addressing the issue of compensatory education, Application of a Child with a Disability No. 05-022 furnishes an excellent overview of compensatory education and its discussion is recited herein. The IDEIA applies to children aged 3 through 21 inclusive (20 U.S.C. §
1412[a][1][A]), subject to the limitation that it does not apply to children aged 18 through 21 where it is inconsistent with state law or practice on the provision of a public education (20 U.S.C. § 1412[a][1][B][i]; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]). New York Education Law specifically provides IDEIA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 02-
016; Application of a Child with a Disability, Appeal No. 00-024). Generally, under the IDEIA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]
[internal citation omitted]). Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318
[1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp.2d 375 [N.D.N.Y. 2001]).
The Second Circuit, however, permits compensatory education services for a student over 21 years old where there has been a gross violation of the IDEA during the time of the child's eligibility (Garro v. Connecticut, 23 F.3d 734, 737 [1994]; Mrs. C., 916 F.2d at 75; Burr v. Ambach, 863 F.2d 1071, 1075 [2d Cir. 1988]), such as the type that results in the denial of or exclusion from educational services for a substantial period of time (see, e.g., Mrs. C., 916 F.2d at 75; Burr, 863 F.2d at 1078, Mrs. C. v. Wheaton , 916 F.2d 69 [2d Cir. 1990]; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Lester H.
v. Gilhool, 916 F.2d 865 [3d Cir. 1990]; Miener v. State of Missouri, 800). In such cases, "the scope of the remedy can extend beyond the scope of the original right" (Burr, 863 F.2d at 1078, citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15
[1971]), and compensatory education services may be awarded to students over 21 as a remedy for past deprivations of a right that the IDEA clearly provided a FAPE between the ages of 3 and 21 (see Burr, 863 F.2d at 1078; Cosgrove, 175 F.Supp.2d at 387). It is, however, an equitable remedy that must be tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff'd 208
F.3d 204 [2000], cert. denied 531 U.S. 1019 [2000]; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a Disability, Appeal No. 02-019).
In fact, the purpose of a compensatory education award is not to provide “extra” educational services to a student, but rather to redress “a school district’s failure to provide that which it was obligated to provide earlier.” Application of the Board of Education of the Millbrook Cent. Sch. Dist., App. No. 02-033, citing Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 [3d Cir. 1994]. Thus while “ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Case No. 159866
Columbia, 4401 F.3d 516, 525 (D.C. Cir. 2005).
In part, the rationale for deferring an award of compensatory education is additionally based upon the notion that a School District must be given the opportunity to remedy its failings during the traditional course of the child’s education. Thus, federal courts within the Second Circuit have held that compensatory education is a remedy that is available to students who are no longer eligible for instruction. Nevertheless, SRO decisions have, in the past, awarded equitable relief in the form of additional educational services to students who rem ain eligible to attend school. (Application of the Bd. of Educ., Appeal No. 03-
075; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030.
It should be noted that, where compensatory education is an issue, the Department is required to develop the record in terms of establishing the appropriate amount of relief needed to remediate the harm created by its failure to offer FAPE. SRO 14-014. In crafting a remedy for compensatory services, the record must offer the Impartial Hearing Officer “insight about the precise types of education services [the student] needs to progress.” Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp 2d 130; 50 IDELR 134 (DDC 2008), citing Branham v. District of Columbia, 427 F.3rd 7, 44 IDELR 149 (DC Cir. 2005). Pertinent findings to enable the hearing officer to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested and the student’s current educational abilities. Ibid.
In the matter at bar, this simply did not occur. As in SRO 14-014, the Department failed to “offer any evidence that could have assisted the IHO in identifying an appropriate amount of compensatory services for the student.” Similarly, it did not present any testimony relevant to such a determination. As cited by the Parent, SRO 16-033 underscores the Department’s obligation to not merely object to the Parent’s remedy for compensatory education. Rather, the Department “must also explain its own view of what type of compensatory education relief would be appropriate to remediate the district’s failure to offer FAPE. As the Parent’s witnesses and exhibits offer the only insights into the child’s needs, I am limited to the evidence.
Point III: Is an appropriate educational placement for for the 2016-2017
school year?
Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington
Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]).
Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112).
While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).
The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April
21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-
111).
Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictiv e environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; com pare Application of a Child with a Disability, Appeal No. 99-44.
I find, at the outset, that the academic program offered by correlates well with the student’s academic needs, as identified in the IEP. As such, would attend classes with similarly profiled children. His deficits are not highlighted through frequent pull-outs and modified assignments, enabling the child to receive educational support along with the rest of the class. is a small private school which is approved by New York State. There are approximately students in its School, of whom twelve are in the . noted that offers a specialized program for . In furtherance thereof, the program offers a approach to instruction which incorporates throughout the day. If necessary, children receive . Students are supported with “ .” Tr. at 236. Ms.
noted that the School utilizes and each student is furnished with , along with . is offered at least to all children in addition to if needed. The witness reiterated that the program follows the and . Under these circumstances, I find that is an appropriate placement for
Point IV: Is the Parents entitled to equitable relief pursuant to Burlington, supra, for the 2014-2015 school year?
Prong three of Burlington, supra, provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v.
Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.
Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent.
Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch.
Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch.
Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).
In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist.
v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v.
Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v.
Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).
The undisputed testimony indicates that the Parent participated cooperatively in CSE meetings. She has shared the results of private evaluations, initiated her own efforts personally and through the and requested meetings with school personnel to discuss how they might collaboratively improve
. She has participated willingly in Departmental assessments, agreed to for her son, and placed her child in Department programs when recommended. Finally, there is no question that the Department had actual notice of the Parent’s concerns, but persisted in recommending the identical program in which he had failed. Under these circumstances, I do not believe there are any equitable considerations which militate against supporting the Parent’s claim to reimbursement.
Conclusion
The Parent’s request for relief is granted in part. Specifically, that portion of the Parent’s Request seeking additional compensatory is denied as there was no testimony from any supporting the need for these specific services. Exh. A at 10.
Wherefore, it is hereby ordered that:
The child shall be entitled to at the at their prevailing rate of per hour in addition to all testing and enrollment fees incurred. Any hours which are not utilized within 2 y ears of the date of this Order shall be forfeited.
The Departm ent shall issue a Nickerson Letter authorizing tuition reimbursement for the during the 2016-2017 school y ear. If necessary , the m atter shall be referred to the CBST, designating the as the child’s educational m andate for the 2016-2017 school y ear.
This amount shall represent the District’s total liability pursuant to the Parent’s Due Process Complaint dated M arch 31, 2016.
Dated: August 22, 2016
LEAH BOTWINIK ALMELEH, ESQ.
Impartial Hearing Officer
LBA:
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Due Process Complaint dated 2/18/16, 12 pages
B Findings of Fact and Decision dated 2/29/12, 44 pages
C Stipulation dated 2/10/16, 7 pages
D Report, June 2014, four pages
E Progress Report, October 2014, four pages
F Letter from Regarding , 10/22/14, two
pages
G Observation Report, 1/16/15, four pages
H Progress Report, March, 2015, six pages
I Progress Report, January 2016, six pages
J Progress Report, unidentified date, four pages
K Progress Report, unidentified date, four pages
L Progress Report, 2016, six pages
M Progress Report, February 2017, 11 pages
N , 2015 to 2016, 18 pages
O IEP, 4/29/15, 29 pages
P IEP, 1/27/16, 26 pages
Q Evaluation, 12/16/15, seven pages
R Evaluation Report, 12/17/15, six pages
S Evaluation, 1/6/16, five pages
T Evaluation, 3/7/16, four pages
U SESIS Events Log, 2014 to 2016, eight pages
V , 2/25/16, 2/29/16, two pages
W Central Response for Consideration of State-Approved Nonpublic
School, 2/25/16, 3/2/16, one page
X Letter from Parent to Regarding Request to Change
Schools, 8/12/15, two pages
Y Letter from to , 25 7/2/12, two pages
Z Letter from to , 7/27/12, two pages
AA Letter from to , 5 8/29/12, two pages
BB Letter from to , 7 1/8/13, one page
CC Letter from to , 4/30/2013, three pages
DD Report, 3/27/13, three pages
EE , 11/14/14, 11/26/14, one page
FF , 2015-2016, three pages
GG 's Notes, 2015 to 2016, three pages
HH , 2015 to 2016, four pages
II report, 1/8/16, one page
JJ Parent Workshop Sign-In Sheet, 2013 to 2015, 22 pages
KK , 5/8/13, one page
LL Email Correspondences Between DOE and regarding new IEP,
2015 to 2016, 14 pages
MM Email Correspondence Between and , 12/13/14,
1/5/15, two pages
NN Email Correspondence Between and , Summer 2015, eight pages
OO Report, 7/19/13, one page
PP Amended Due Process Complaint, 5/27/16, 18 pages
QQ Email from to , 6/4/15, one page
RR , 2016, eight pages
SS Letter from to , 9/28/16, one page
TT , January 2017, three pages
UU Rate Letter, 4/27/17, one page